In today's essay, Jane Chong confronts the Kabuki Theater also known as the US Senate in the 2020 impeachment process. The Senate Majority Leader, Senator Moscow Mitch McConnell (R-KY) has proclaimed himself to be a functionary of the White House and its occupant, The ILK (Impeached Lyin' King). This is not the equivalent of a trial, it is a sham. If this is a (fair & balanced) diagnosis of an institutional flaw in the government of the United States of America, so be it.
[x The Atlantic]
This Is Not The Senate The Framers Imagined
By Jane Chong
TagCrowd Cloud provides a visual summary of the blog post below
Alexander Hamilton called it—almost. In his essay “Federalist No. 65,” Hamilton recognized the possibility that the Senate’s judgment in an impeachment trial “will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” He pushed that concern aside, though, and concluded that only the Senate was up to the task of conducting a presidential-impeachment trial with the “requisite neutrality.” No other body was “sufficiently dignified” and “sufficiently independent” to serve as a “fit depositary of this important trust.”
Hamilton’s confidence is hard to square with the Senate leadership’s own stated approach to the proceedings to come. Last month, Senate Majority Leader Mitch McConnell set off waves of indignation among Democrats and reportedly unsettled members of his own party when he announced that he would be working “in total coordination with the White House counsel's office" throughout the Senate impeachment trial process.
All of this is unfolding in an election year, against a backdrop of heavy pessimism about how political pressure will affect individual senators’ votes. No case has yet been presented and no evidence heard, but President Trump’s acquittal by the Senate is widely recognized as a foregone conclusion.
So what was Hamilton thinking? If he anticipated that partisanship could undermine the fairness of an impeachment trial, why did he—and the rest of the Founders—ultimately entrust the president’s conviction or acquittal to the Senate?
One answer is that today’s Senate is not the Senate of the Founders’ making. The Constitution originally provided for the selection of senators by their state legislatures, a measure that was intended to “keep down the turbulence of democracy,” as the Constitutional Convention delegate Gouverneur Morris of Pennsylvania put it. But thanks to the 17th Amendment, ratified in 1913, almost a century and a half after the Founding, senators are now chosen through direct election by the people of their states. This was not a technical tweak but a fundamental design change.
Those who lament the passage of the 17th Amendment—including Tea Party activists and sitting Republican Senators Mike Lee, of Utah, and Rand Paul, of Kentucky—have tended to focus on its disruption of the Founders’ grand vision for federalism, wherein power is divided between the national and state governments to protect state sovereignty, as well as to safeguard citizens from potential abuse by a single unchecked authority. As Roger Sherman, a convention delegate representing Connecticut, explained in a July 1789 letter to John Adams, the idea was that the “senators, being eligible by the legislatures of the several states, and dependent on them for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States.”
Indirect election was also crucial to some of the Founders’ faith in the Senate’s ability to act in the public interest—and their decision to vest the Senate with particular powers, including the “sole Power” to conduct impeachment trials. Consider Hamilton’s claim, in “Federalist No. 65,” that only the Senate “would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers.” Specifically, he is asserting that unlike their House counterparts (the “accusers” entrusted to render the equivalent of a presidential indictment), individual senators could be expected to issue fair judgments because their selection by fellow political professionals, for relatively long, six-year terms, insulated them from the vicissitudes and foibles of popular opinion.
This is not to say that the 17th Amendment was a bad idea. It was ratified by the states less than a year after passing the House and Senate, because by then the indirect-election system was an acknowledged mess. Bribery and corruption ran rampant; newspapers decried special interests and wealthy private individuals who bought Senate seats. And when state legislatures deadlocked—as often happened when one party controlled the state assembly or House and another the state Senate—U.S. Senate seats went unfilled, sometimes for years at a time.
The point is simply that no assessment of how impeachment trials are supposed to work is complete without consideration of just how much stock the Founders placed in the senators’ indirect election, and why. In “Federalist No. 64,” to support his argument that senators could safely be vested with the power to approve treaties, John Jay claimed that state legislatures could be expected to appoint “those men only who have become the most distinguished by their abilities and virtue” and “whose reputation for integrity inspires and merits confidence.” During the first half of the 19th century, the Senate rose to the Founders’ expectations, at least according to historians like Robert Caro and H. W. Brands. In their telling, the antebellum Senate was America’s most revered institution—the elite, deliberative counterpart to the rambunctious, popularly elected House. In this so-called golden age, the Senate floor served as the country’s main stage, and its greatest orators—John Calhoun of South Carolina, Henry Clay of Kentucky, and Daniel Webster of Massachusetts—were the celebrities of their time.
The French diplomat Alexis de Tocqueville famously, and snootily, disdained the “vulgarity and … poverty of talent” of the “obscure individuals” who made up the House of Representatives. “It is said that the representatives of the people do not always know how to write correctly,” Tocqueville scoffed. Yards away, however, was “the door of the Senate, which contains within a small space a large proportion of the celebrated men of America,” whom he praised as “eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose language would at all times do honor to the most remarkable parliamentary debates of Europe.”
Tocqueville attributed the “strange contrast” between the chambers entirely to the manner of their members’ selection. Although both assemblies reflected the choices of the people, in his estimation, the fact “that the House of Representatives is elected by the populace directly, and that the Senate is elected by elected bodies” changed everything. The "transmission of the popular authority through an assembly of chosen men” resulted in a Senate that reflected the best of the American spirit, a body capable of representing the community’s “elevated thoughts” and “nobler actions” rather than its “petty passions” and “vices.”
If all this sounds uncomfortably elitist, that’s because it was, at least by modern standards. James Madison did not merely claim, in “Federalist No. 51,” that prudence counseled dividing the legislature into two branches governed by “different modes of election and different principles of action”; he went so far as to argue, in “Federalist No. 63,” that the Senate was to “be sometimes necessary as a defense to the people against their own temporary errors and delusions.” Elbridge Gerry, later Madison’s vice president, similarly attributed the “excesses of democracy” to the public’s vulnerability to manipulation: “The people do not lack virtue, but are the dupes of pretended patriots.” US senators, carefully handpicked by state legislators whose own pride was on the line, could defend the people against duping, as wealthy landowners (Morris actually used the term aristocracy) endowed with the intellect and education—and relatedly, backbone—that money affords. Or so the thinking went.
More than a century later these views became a constitutional nullity, resulting in a second legislative chamber whose members are, for the most part, nakedly sensitive to the pressures of reelection. But though the Founders’ preference for indirect election, and their underlying rationale, is out of step with modern thinking, their goal—to engineer a body that would reliably put the public good first—is as relevant as ever. The question is whether, in an era defined by hyperpolarization and partisan acquiescence, that goal continues to inform modern America’s expectations of its legislators—and Congress’s own conception of itself. As the country heads into a historic impeachment trial, the Founders’ original vision of institutional courage is worth remembering, and the fears that shaped it worth understanding, not because their blueprint for the Senate should be resurrected but because their high ambitions for the Senate, so intimately linked to that blueprint, are now truly at stake. ###
[Jane Chong is the former deputy managing editor at the Lawfare Institute. She received both a BA summa cum laude (English and philosophy) and BS (economics) as a Duke University Scholar at Duke University (NC) and a JD from the Law School of Yale University (CT). While at Yale, she was a senior editor of the Yale Law Journal and a recipient of the Israel H. Peres Prize for the best student note or comment in the Yale Law Journal, as well as the Thurman Arnold Prize for best oralist and the Potter Stewart Prize for best team overall oral and written advocacy in the Morris Tyler Moot Court of Appeals competition. After law school, Chong clerked for Judge Cheryl A. Krause of the United States Court of Appeals for the Third Circuit. Currently, she is an associate at Williams & Connolly, LLP in Washington, DC.]
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